Board of Regents v. Southworth, 529 U.S. 217; 120 S. Ct. 1346; 146 L. Ed. 2d 193 (2000)
Facts—Students at the University of Wisconsin, Madison, challenge the expenditure of student activities fees in support of organizations that advocate a number of political views to which they object. Both the U.S. District Court and U.S. Seventh Circuit Court of Appeals invalidated the use of such fees for such purposes.
Questions—
(a) Do funds charged to students by a public university for extracurricular activities violate the free speech, free association, and/or free exercise clauses of the First Amendment as applied to the states via the Fourteenth Amendment?
(b) Can the designation of such fees be made through student referendums?
Decisions—(a) Such fees are constitutional if they are expended in a way that they are “viewpoint neutral.” (b) The lower courts need to reexamine the referendum provision.
Reasons—J. Kennedy (9–0). The University of Wisconsin collects over $300 per year through nonrefundable activity fees. About 80 percent of this is classified as unallocable and goes to student health, intramural sports, campus upkeep, and the like. The rest is allocated to registered student organizations (RSOs), which are funded from the Student Government Activity Fund (SGAF). Both sides have stipulated that such funds are administered to a variety of student groups in a “viewpoint neutral” fashion, although monies may also be allocated through a student referendum. Most RSO funding is done on a reimbursement basis. Students challenged the mandatory fees on the basis that they violated free speech, free association, and free exercise rights by forcing students to support views with which they disagreed. The lower court applied a three-part test in Lehnert v. Ferris Faculty Assn., 500 U.S. 507 (1991), to find that the program “was not germane to the University’s mission, did not further a vital policy of the University, and imposed too much of a burden on respondents’ free speech rights.” Other courts had come to different conclusions about similar programs. J. Scalia concluded that this case was different from those where the government is speaking or where the organization is speaking on its own.
In Abood v. Detroit Board of Education, 431 U.S. 209 (1977) and Keller v. State Bar of California, 496 U.S. 1 (1990), the Court exempted teachers and members of the legal bar from having to contribute to the support of political views with which they disagreed, but in this case, the university is attempting to facilitate a wide variety of speech. A university might choose to exempt students from supporting causes with which they disagree, but it is not required to do so. The central requirement to which university funds are subjected is that of content neutrality. Because it is unclear how the referendum procedure relates to such neutrality, that issue is remanded to the lower courts.
J. Souter, concurring, accepted the Wisconsin program but was unwilling “to impose a cast-iron viewpoint neutrality requirement to uphold it.” He also emphasized the university’s discretion in shaping its own educational mission.
